Professor David Bernstein (George Mason) has a thoughtful response to my essay on law and tradition. Here is a bit:
When it comes to American constitutional law, by the late 19th century there was widespread agreement on two principles: that when interpreting the Fourteenth Amendment, the Supreme Court’s role was to protect those natural rights that had been crucial to the development of Anglo-American liberty; and that the United States had an unwritten Constitution based on traditional principles, much like Great Britain’s, that informed constitutional analysis.
For the most part, the Supreme Court justices of the pre-New Deal period did not engage in a jurisprudence of originalism that would be recognizable to modern advocates of originalism. Rather than focusing on the original public meaning of discrete portions of the text, they instead interpreted the Constitution in light of the classical liberal values they believed were embedded in America’s written and unwritten constitutions. They sought to protect those liberties that underpinned the development of Anglo-American liberty. Their Progressive critics recognized this as a form of originalism, and accused them of allowing the dead hand of the past to rule the present. The critics instead advocated a “living Constitution” that would privilege social science and the perceived needs of modernity over the protection of traditional American liberties.
The old Court permitted the government to impinge on recognized liberties when the government was acting within the contours of the so-called police power. Importantly, that power included not simply the protection of public health and safety, but also the protection of public morals, as defined by Anglo-American tradition. For example, despite the Court’s endorsement of liberty of contract, it had no difficulty unanimously upholding a law that restricted work on Sundays.
The Supreme Court’s concern for protecting natural rights as understood in the context of Anglo-American history did not survive the New Deal and the triumph of legal progressivism. That triumph was so complete that for a long time the only significant debate in American constitutionalism was in effect between old Progressives who wanted to severely limit judicial review, and new Progressives who agreed that judicial review should generally be limited, but who sought to carve out certain preferred freedoms for special judicial protection. These freedoms were not defined by reference to tradition or history, but by the need to ensure that the modern special-interest state had democratic legitimacy. As the American state-building project continued, it was considered crucial to ensure that freedom of speech allowed for public debate and input, that criminal suspects received federal procedural protections, and that minorities such as African Americans did not become a permanent underclass, with their status imposed by government.
In October, Routledge will release The Church of England and Divorce in the Twentieth Century: Legalism and Grace by Ann Sumner Holmes (Louisiana State University). The publisher’s description follows:
Attitudes towards divorce have changed considerably over the past two centuries. As society has moved away from a Biblical definition of marriage as an indissoluble union, to that of an individual and personal relationship, secular laws have evolved as well. Using unpublished sources and previously inaccessible private collections, Holmes explores the significant role the Church of England has played in these changes, as well as the impact this has had on ecclesiastical policies. This timely study will be relevant to ongoing debates about the meaning and nature of marriage, including the theological doctrines and ecclesiastical policies underlying current debates on same-sex marriage.
In October, Oxford University Press will release Christmas in the Crosshairs: Two Thousand Years of Denouncing and Defending the World’s Most Celebrated Holiday by Gerry Bowler (King’s College). The publisher’s description follows:
An Anglican priest hands out brass knuckles to his congregation, preparing to battle anti-Christmas fanatics. Fascists insist that the Winter Solstice is the real Christmas, while Communists stage atheist musicals outside of churches on Christmas Eve. Activists vandalize shops that start touting the holiday in October and anti-consumerists sing parody carols in shopping malls. Is there a war on Christmas? As Gerry Bowler demonstrates in Christmas in the Crosshairs, there is and always has been a war, or several wars, on Christmas.
A cherished global phenomenon, Christmas is the biggest single event on the planet. For Christians it is the second-most sacred date on the calendar, but it also engages billions of people who are caught up in its commercialism, music, sentiment, travel, and frenetic busyness. Since its controversial invention in the Roman Empire, Christmas has struggled with paganism, popular culture, and fierce Christian opposition; faced abolition in Scotland and New England; and braved neglect and near-death in the 1700s, only to be miraculously reinvented in the 1800s. The twentieth century saw it banned by Bolsheviks and twisted by Nazis. Since then, special interest groups of every stripe have used the holiday’s massive popularity to draw attention to their causes.
Christmas in the Crosshairs tells the story of the tug-of-war over Christmas, replete with cross-dressing priests, ranting Puritans, and atheist witches. In this eye-opening history of Christmas and its opponents from the beginning up to the present day, Bowler gives us a shocking, and richly entertaining, new look at the tradition we thought we knew so well.